Horn, R. v

An offender’s employment as a teacher does not aggravate offences involving indecent images of children merely because the offender worked with children. There must be a genuine breach of trust in the offending, or an evidential basis connecting the employment to a risk to children.

A Sexual Offences Prevention Order must be necessary and proportionate. Restrictions on contact with children require an identifiable risk of contact offending. They cannot be imposed speculatively because the offender committed image-based sexual offences.

The appellant, a deputy head teacher with no previous convictions, pleaded guilty to possessing an extreme pornographic image, possessing indecent images of children, and making indecent photographs of children. He was committed from the East Kent Magistrates’ Court to the Crown Court at Canterbury, which imposed concurrent sentences of 18 months’ imprisonment and a 10-year Sexual Offences Prevention Order.

He appealed against sentence. The issues were whether his teaching role could aggravate image-based offending, and whether restrictions on internet contact with, and unsupervised contact with, children were justified.

1. The appeal was allowed in part. The concurrent sentences of 18 months’ imprisonment for offences 2 to 10 were quashed and replaced with concurrent sentences of 10 months’ imprisonment.

2. The sentencing judge erred by treating the appellant’s employment as a deputy head teacher, and the supposed hypocrisy of his position, as aggravating features. The offending involved no breach of trust as a teacher. The victims were unidentified children abused by others, not his pupils. There was no suggestion that he had assaulted, or put at risk, any child in his care.

3. The appropriate 12-month custodial starting point was increased to 18 months because of the young ages of some victims. It was then reduced to reflect strong personal mitigation and discounted by one third for the early guilty pleas, producing a sentence of 10 months.

4. Applying Smith and Others [2011] EWCA Crim. 1772, the court held that prohibitions on contact with children under a Sexual Offences Prevention Order require an evidential basis showing an identifiable risk of contact offending. The careful risk assessment identified a low risk of further offending of the image-based kind, not contact offences. Paragraphs 3 and 5 of the order were therefore quashed.

5. The £100 victim surcharge was unlawful because some offending pre-dated the commencement of the Criminal Justice Act 2003 (Surcharge) Order 2012. It was quashed. The sentence was otherwise unaffected.

• Court of Appeal (Criminal Division) — allowed the appeal in part; substituted concurrent 10-month sentences for offences 2 to 10, quashed two prohibitions in the Sexual Offences Prevention Order, and quashed the victim surcharge.
• Crown Court at Canterbury — on 12 December 2013, imposed concurrent sentences of 18 months’ imprisonment and a 10-year Sexual Offences Prevention Order.
• East Kent Magistrates’ Court — on 25 October 2013, accepted guilty pleas and committed the appellant to the Crown Court for sentence.